6.15The current Extradition Act categories are overly complex. While there are a few statutory criteria, it is largely unclear on what basis a designation to a particular category or subcategory should be made. We consider that the categorisation of countries under a new Extradition Act should reflect the following principles:
6.16The new Act should provide for two categories. Category 1 would be for countries with which New Zealand has a particularly close relationship. Category 2 would apply to all other countries. This would enable a relatively simple structure in the new Extradition Act and would be easily understood by foreign countries wishing to make extradition requests.
6.17The key distinction between the two categories would rest on how much evidence relating to the person’s offending is required from the requesting country. It is important to be able to excuse some countries from the requirement to provide this type of information as their close ties with New Zealand, procedural similarities, and justice systems warrant leaving this inquiry totally for the trial in the requesting country.
6.18There might be concern that the two-category proposal does not allow for enough gradations in the type of extradition relationship that New Zealand has with different countries. For instance, the proposed structure could be seen as not taking into account countries that may have considerably different legal systems, but nevertheless we are comfortable placing special reliance on their processes in their justice systems. Arguably, these countries should not be treated in the same way as all other countries.
6.20A further possible concern about our proposed structure is that, by including in Category 2 all countries that are not in Category 1, the categorisation process is not providing an adequate check on the countries to which New Zealand wants to extradite. Government decisions regarding categorisation provide a screening process regarding which countries are placed into each category. There is benefit to identifying those countries that can have their extradition requests dealt with under a streamlined process with minimal need for the New Zealand decision makers to check on the request (Category 1), but we do not see that applying different treatment to the remaining countries through categorisation is an effective or efficient way of fulfilling New Zealand’s extradition obligations. Instead, this paper proposes creating a robust extradition scheme, with appropriate checks and balances that would allow inappropriate extradition requests to be rejected without complex categorisation. Furthermore, the central authority for extradition would be tasked with vetting extradition requests prior to the court considering them.
6.21It would be possible to create further distinctions between countries in both Category 1 and Category 2. For Category 1, one option is to treat Australia even more favourably. For Category 2, further distinctions between countries could be made through the categorisation process, which could dictate other procedural requirements.
6.24However, there could be a concern about creating a special category for Australia. It could immediately raise a question for other countries that have not been given this treatment as to why they are not in the same position, including countries with which New Zealand has strong historical ties, such as the United Kingdom. This may lead to difficulties in the diplomatic relationship between New Zealand and some other countries. In addition, by codifying a special status for Australia in the Act, New Zealand would not be allowing for changes to the legal regime in Australia. Further, the additional category would add another layer of complication to the proposed structure of the new Act.
6.25It would be possible for some countries to have automatic entry into Category 2, while others would require some consideration before they could be accepted into that category. This distinction would be created through the categorisation process, which is discussed below.
6.26Another possibility is to only make the record of the case procedure available for some Category 2 countries and not for other countries. These other countries would still need to present actual evidence of the case against the person sought for the court inquiry in New Zealand. This option is discussed in Chapter 7.
6.27The following options should be considered:
6.28Option (a) is the simpler and more straightforward of the two options. It allows the Government to make a thorough assessment of all countries it might wish to include in Category 1. This would include, for example, Australia and the United Kingdom.
6.29Option (b) would rely on requesting countries themselves making an application to be included. It would also mean that the Act could be brought into force without the Government having to first work through the decision-making process to formulate the list. The major drawback with option (b) is that few countries may apply for categorisation. This problem is illustrated by New Zealand’s experience following the introduction of the 1999 Act, which was premised on the understanding that countries would apply for different designations and exemptions. Very few countries have made these applications.
6.30The options are not exclusive, and regardless of whether one or both options are chosen, the Act would need to contain a procedure to allow changes to the categorisation of countries after the Act is in force.
6.31The following options should be considered:
6.32Option (a) is a straightforward rule that has the advantages of clarity, simplicity, and comprehensiveness. It does not require criteria for inclusion in Category 2 to be developed. It does not involve a ministerial decision, which could then be reviewed and could delay the resolution of an extradition request. Treating all countries that are not in Category 1 the same reduces the capacity for concern or offence from those countries. It provides an equality of process for all countries not in Category 1.
6.33This option would mean that the Act would make it possible to extradite to any country. There would be no preliminary vetting or assessment process before a country becomes eligible to use the record of the case procedure. However, other safeguards in the new Act on which requests could be turned away or refused – such as the definition of extradition offence, the grounds for refusing requests, and a strengthened central authority – could be relied on to prevent extraditions on a case-by-case basis to countries over which there are real concerns.
6.34Option (b) would allow for a controlled list, as it would enable a screening process over the palatability of extraditing to a country before a particular request is made. This would occur either through the treaty negotiation process or through the determination of an application. The option would require the development of criteria. The major problem with this option, as with option (b) under Category 1, is that it requires countries to take the active step of applying to be included in Category 2. It is unclear how many countries would be sufficiently motivated to make an application, given that New Zealand does not have a steady number of extradition requests from many countries and is a relatively small player internationally.
6.35Option (c) has the advantage of tying the consideration of the categorisation to a particular extradition request, which means that countries will have the necessary motivation to engage with New Zealand on these issues. However, this option would add another potentially long and complex stage to extradition requests. It would create a judicially reviewable decision that could significantly delay the resolution of the extradition request.
6.36A major problem with either option (b) or option (c) is that it is difficult to set down what the criteria should be for deciding what countries can come within Category 2. Most likely, this distinction would depend on diplomatic matters that ought not to be reviewable and, therefore, should not be set down in statute. Our preference for the categorisation of Category 2 countries is option (a).
6.37There should be statutory criteria that set out the factors that should be considered in deciding how to categorise a country under the new Act. Having clear and comprehensive statutory criteria will make categorisation more transparent and improve the consistency and robustness of decision making.
6.38Under our preferred options, these would apply only to the categorisation of Category 1 countries. Under Category 2, if option (b) or option (c) above are selected, the statutory criteria would also need to be used for categorisation of Category 2 countries. The same criteria would likely be relevant to both decisions. The Minister’s role would be to consider whether, on balance, the country met the criteria to a sufficient standard, thus warranting that country’s inclusion in a category.
6.40Our view is that the criteria for categorisation should be broad and allow for consideration of a variety of relevant factors. We discuss, below, the nature and importance of a number of factors, all of which we consider should be included in a statutory list of criteria.
6.41There has been some shift away from the traditional centrality of reciprocity in extradition relationships in recent decades. The growth in international crime and the multilateral efforts to combat it have led to an increased focus on international cooperation for the purpose of law enforcement. We believe, however, that reciprocity still has a place in categorisation decisions. How another country would treat an extradition request from New Zealand is relevant not to whether or not New Zealand should consider extradition at all but to the category in which the country should be placed. Reciprocity is a useful measure of a country’s willingness to cooperate and its commitment to good relations with New Zealand, which will assist with the smooth resolution of extradition requests, and indicates whether a streamlined process is appropriate.
6.42A key factor in any decision about categorisation is, and should continue to be, New Zealand’s commitment to international cooperation or comity in extradition and the combatting of crime. New Zealand should err on the side of encouraging extradition rather than unnecessarily making things difficult for other countries. This factor will always need to be balanced against other factors that may mitigate against simplifying the process for a particular country too much.
6.43There would be little point in placing a country in Category 1 if that country is very unlikely to make an extradition request of New Zealand. Conversely, where there is a high volume of extradition requests between New Zealand and another country, as is the case with Australia, there is a high degree of familiarity and trust with the systems and processes that apply in either country. Often, the frequency of extraditions is related to the geographical proximity of a country to New Zealand because this will influence the movement of people between the countries and the potential for an extradition request.
6.44The perceived reliability of a country’s justice system should be considered in deciding the categorisation of the country, because it impacts significantly on the liberty interests of a person who is the subject of an extradition request. New Zealand would want to be assured that a country that is designated for a streamlined procedure can be trusted in the criminal rules, systems, and processes that are in place in that country. This would include looking at whether a country has rules preventing an extradited person from prosecution for crimes other than those to which the extradition relates, and from extradition to a third country, as well as whether the wider criminal investigation and prosecution systems include adequate checks and balances.
6.45A related factor is a country’s human rights record and reputation. These should be of a high standard in order for a country to be categorised in a way that would lead to a simplified process that did not include some of the protections provided by New Zealand courts in extradition proceedings. The right to justice, right not to be deprived of life, and right to freedom from torture are particularly important. The types of indicators that might be used to measure this factor include a country’s record in international country reports and before international tribunals and the country’s accountability to a multinational court that has jurisdiction over human rights matters.
Q13 How should the new Extradition Act distinguish between different countries, and for what purposes and why? Is there a special case for any country, for example, Australia?